Terminations

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In a recent Ninth Circuit decision, the court held that “a piece of evidence [may not be disregarded] at the summary judgment stage solely based on its self-serving nature.” As a result, declarations created after summary judgment motions are filed may be sufficient to create genuine issues of material fact and, therefore, defeat summary judgment. This decision is particularly concerning because it allows a party to thwart summary judgment with little to no credible or corroborated evidence.
Continue Reading Follow-up on: Be Careful What You Say—It Might End Up in a Declaration to Defeat Summary Judgment

In a recent opinion affirming an arbitrator’s judgment in favor of an employer on various employment law claims, the California Court of Appeal held that an employee agreed to arbitrate all claims against her former employee when she signed an arbitration policy contained in an easy-to-read document distinct from any other document the she signed at the time of her hiring.  In doing so, the Court clarified important aspects of the test for enforcing an arbitration agreement signed by a company’s employees. 
Continue Reading California Appeals Court Affirms that Employee Signature Acknowledging Clear Arbitration Policy Makes Policy Binding

On December 1, 2014, in Ferrick v. Santa Clara University (H040252), the California Court of Appeal rejected a university employee’s attempt to support her wrongful termination claim with allegations of embezzlement, tax evasion, or other alleged improprieties in public financing and real estate deals.  However, the employee successfully stated a claim for wrongful termination based on her allegation that a supervisor accepted kickbacks for placing university tenants with a private landlord, which provided a reasonable basis for the employee to suspect commercial bribery under Penal Code section 641.3.
Continue Reading Not All Supervisor Misconduct Violates Public Policy Sufficiently to Support Whistleblowing Claims

Jim Irving, a former employee of the Los Angeles Unified School District, was fired for falsifying time records on at least four occasions. Irving admitted he did not take his breaks at the locations or at the times specified by his employer, exceeded his allotted break time, and deliberately filled out his time sheets to hide his violations.

Irving filed for unemployment compensation benefits. The Employment Development Department initially granted benefits. However, the Unemployment Appeals Board (“Board”) held an administrative hearing and denied benefits.  The Board found that Irving had been informed when he was hired of the district policy concerning the duration of breaks and where they could be taken. He also signed a written acknowledgement that explained the policy. According to the Board, Irving’s violations were documented by the global positioning system in the trucks he drove for the district. Based on Irving’s admissions and other evidence, the Board concluded that Irving “falsely recording his times and locations for each of the 10 days on the district’s time records.” Consequently, Irving was discharged for “misconduct” that rendered him ineligible for benefits.
Continue Reading Falsification of Time Sheets for Breaks was Misconduct Under Unemployment Insurance Code

On August 19, 2014, a California Court of Appeal held that the requirements of Labor Code sections 202 and 203 apply not only to employees who quit, but also to employees who retire.  In McLean v. State of California et al., No. C074515 (Cal. Aug. 19, 2014), the plaintiff filed a putative class action lawsuit on behalf of all employees employed by the State of California who retired from their employment between November 2010 and March 2011, who did not receive prompt payment of wages as required by Labor Code section 202.  Among other things, the putative class sought waiting time penalties under Labor Code section 203.  At the trial level, the defendants’ demurrer was sustained without leave to amend because the plain text of Labor Code section 202 requires prompt payment of wages owed only for employees who “quit his or her employment.”  Because the putative class sought penalties for retired employees, the trial court determined that the employer could not have violated Labor Code section 202.  Nevertheless, the Court of Appeal reversed and found that the term “quit” in Labor Code section 202 also encompasses retired employees.
Continue Reading California Court of Appeal Holds That Retired Employees Can Also Subject Employers to Waiting Time Penalties

On January 31, 2014, a California Appellate Court reversed an employer’s summary judgment despite well documented evidence of the employee’s history of poor performance.  This decision—Cheal v. El Camino Hospital (No. HO36548)—addresses a pivotal question for employers: when can employers legitimately terminate a protected employee because of poor performance?

At the age of 61,…

Timing is not everything. In Rope v. Auto-Chlor of Washington System of Washington, Inc., the employer fired an employee for purported performance reasons on December 30, 2010 – two days before California’s Michelle Malkin Donor Protection Act became effective.   The timing was significant because when the employee was hired in October of 2010, he…